OFSCDRS 2001

The insurer brought a motion seeking production of the applicant's examination for discovery transcript from a related tort action to test his credibility at an arbitration hearing.

The applicant opposed production, relying on the deemed undertaking rule.

The arbitrator dismissed the motion, holding that only the court in which the tort action was commenced has the jurisdiction to grant relief from the implied or deemed undertaking rule.

The arbitrator disagreed with previous FSCO decisions that found concurrent jurisdiction to grant such relief under the Insurance Act.

The appellant brought a motion alleging institutional bias against the adjudicators of the Financial Services Commission of Ontario.

The motion was previously adjourned on conditions, including that the appellant pay $500 in expenses to the respondent.

The appellant failed to pay the expenses or provide submissions explaining the default.

The Director's Delegate dismissed the bias motion due to the appellant's deliberate refusal to comply with the prior order, finding that allowing the motion to continue would bring the administration of the appeal process into disrepute.

The appellant was injured in a motor vehicle accident and sought payment for a multidisciplinary assessment under s. 24 of the SABS-1996.

The arbitrator allowed the costs for the physiotherapy and functional abilities assessments but denied the cost of the orthopaedic assessment.

Both parties appealed.

The Director's Delegate dismissed the appeal and cross-appeal, finding that the arbitrator correctly applied a flexible, contemporaneous reasonableness test to determine whether the assessments were obtained for the purpose of the regulation.

The Delegate also declined to admit fresh evidence on appeal and dismissed a motion alleging institutional bias.

Allstate appealed an arbitration order awarding the respondent $3,655.41 for rehabilitation expenses at a clinic.

Allstate argued the arbitrator erred in law by classifying the kinesiology treatment as 'one-to-one' and allowing an $80 hourly rate, and by finding the clinic's assessment fees were not recoverable from OHIP.

The Director's Delegate dismissed the appeal, finding no error of law in the arbitrator's conclusion that the $80 hourly fee was a reasonable and necessary expense given the respondent's age and complex medical history.

The Delegate also upheld the finding that the specific assessment fees were payable by the insurer, as the arbitrator was entitled to accept evidence that the clinic could not bill OHIP for them.

The insurer raised a preliminary issue regarding the self-represented applicant's mental competence to proceed with his arbitration for statutory accident benefits.

The applicant had a history of paranoid schizophrenia and hospitalizations.

Applying the presumption of capacity under the Substitute Decisions Act, the arbitrator reviewed medical evidence and heard testimony from the applicant.

The arbitrator found that the applicant's cognitive functions were intact while on medication, he understood the issues in dispute, and he appreciated the consequences of his decisions.

The arbitrator concluded the applicant was mentally capable and could proceed without a litigation guardian.

The applicant was injured in a motor vehicle accident and sought statutory accident benefits for nerve block injections, botox injections, massage treatments, and a special award for delayed payment of psychological and vocational assessments.

The arbitrator found that the nerve block injections were a reasonable and necessary treatment for short-term pain relief, ordering the insurer to pay the $800 cost.

However, the claim for botox and massage was dismissed, as the arbitrator accepted expert evidence that botox is an experimental treatment for chronic pain.

The arbitrator also awarded a special award of $1,170 against the insurer for unreasonably denying psychological treatment without requesting a Designated Assessment Centre (DAC) assessment, despite the insurer settling the claim shortly before the hearing.

The applicant, a 47-year-old welder with limited education and functional illiteracy, was injured in a motor vehicle accident and could no longer perform his pre-accident job due to chronic neck and back pain.

He found alternative employment as a car jockey earning significantly less.

The insurer terminated his income replacement benefits at the 104-week mark, arguing he could perform other skilled trades or driving jobs.

The arbitrator found that the applicant suffered a complete inability to engage in any employment for which he was reasonably suited by education, training, or experience, preferring the applicant's psycho-vocational evidence that he lacked the literacy and physical capacity for the insurer's suggested occupations.

The applicant was awarded ongoing income replacement benefits and costs for certain assessments, but claims for housekeeping, a spinal corset, and a special award were dismissed.

The insurer brought a motion to stay the arbitration, arguing the applicant was not entitled to access dispute resolution mechanisms because he failed to make himself reasonably available for an insurer's examination under section 65 of the Statutory Accident Benefits Schedule.

The applicant argued the assessment was not reasonably required as there was extensive medical documentation and no change in circumstances since a prior DAC assessment.

The arbitrator found the assessment was reasonably required given the passage of time since the last insurer's assessment and the applicant's age.

The arbitration in respect of attendant care benefits was stayed until the applicant makes himself reasonably available for the assessment.

The applicant sought the appointment of a new arbitrator under s. 282(12) of the Insurance Act, alleging that the pre-hearing arbitrator demonstrated bias by expressing hostility and warning of potential cost consequences if a four-day hearing was pursued for a small claim.

The Director of Arbitrations dismissed the application, finding that the arbitrator's conduct, even if he lost his temper, did not create a reasonable apprehension of bias.

The arbitrator ultimately allowed the four days requested for the hearing, demonstrating that he did not have a closed mind.

The applicant applied under s. 282(12) of the Insurance Act for the appointment of a new arbitrator, alleging that the current arbitrator demonstrated bias against her representatives in another case.

The Director of Arbitrations dismissed the application, finding no evidence of bias against the representatives or the applicant in the present case, relying on reasons detailed in a concurrent decision.

The Superintendent of Financial Services appealed arbitration orders which held that the French Language Services Act applied to the Minister's Committee on Designated Assessment Centres and the Designated Assessment Centres.

Before the appeal was heard, the insured and the insurer settled all issues in dispute.

The Superintendent subsequently requested to withdraw the appeal due to mootness.

The Director of Arbitrations granted the withdrawal without conditions or expenses, noting that the arbitration decisions stand but have not been reviewed on the merits.

The Superintendent of Financial Services appealed an arbitrator's preliminary decisions which held that the French Language Services Act applied to Designated Assessment Centres.

Before the appeal could be heard, the insured and the insurer settled all their disputes.

The Superintendent subsequently requested to withdraw the appeal on the basis that the settlement rendered the matter moot.

The Director of Arbitrations granted the request and ordered the appeal withdrawn without conditions or costs, noting that the arbitrator's decisions remain intact as their merits were not reviewed.

The insurer brought a motion to stay the insured's arbitration for attendant care benefits on the basis that the insured failed to attend a requested insurer's examination under section 65 of the Statutory Accident Benefits Schedule.

The insured argued the assessment was not reasonably required because a previous Designated Assessment Centre (DAC) assessment had already established his needs and there was no change in his condition.

The arbitrator found that the requested assessment was reasonably required, noting the passage of time since the last insurer's assessment and the insured's changing life circumstances.

The arbitrator ordered that the arbitration be stayed until the insured makes himself reasonably available for the assessment.

The applicant sought income replacement benefits following a motor vehicle accident but failed to attend the arbitration hearing.

The insurer proceeded with its case, presenting medical reports and video surveillance evidence suggesting the applicant was capable of working.

The arbitrator found the applicant failed to meet his burden of proof and dismissed the claim.

The arbitrator awarded the insurer $2,500 in expenses, finding the applicant's abandonment of the claim without notice constituted an abuse of process.

The insurer appealed an arbitration order finding that the insured's claim for weekly benefits was not time-barred.

The insurer argued it had provided clear notice of termination of income replacement benefits (IRBs) effective August 2, 1997.

However, the insurer later agreed to pay IRBs up to the 104-week mark and made a loss of earning capacity benefits (LECBs) offer, which required the insured to continue qualifying for IRBs.

The Director of Arbitrations held that by engaging in the LECB process, the insurer acknowledged the insured's ongoing qualification for IRBs, preventing it from relying on the earlier termination date.

The appeal was dismissed.

The applicant was injured in a motor vehicle accident and sought ongoing statutory accident benefits.

The insurer requested that the applicant attend an insurer's medical examination with a rheumatologist, which the applicant refused, arguing her injuries were primarily orthopaedic.

On a preliminary motion, the arbitrator found the examination reasonably necessary, noting the applicant suffered from both orthopaedic and rheumatological conditions and relied heavily on her own treating rheumatologist's medical-legal reports.

The insurer's request for an order precluding the applicant from proceeding to arbitration if she failed to attend was dismissed as premature.

The applicant was injured in a motor vehicle accident and received statutory accident benefits from the insurer.

The insurer terminated medical, rehabilitation, and caregiver benefits in 1998.

The applicant applied for arbitration in December 2000, beyond the two-year limitation period.

The applicant argued the insurer was estopped from relying on the limitation period because it failed to provide a copy of the accident benefits file upon request.

The arbitrator found the insurer gave clear and unequivocal notice of termination and that its failure to respond to file requests did not constitute a waiver or create an estoppel.

The arbitration was dismissed as statute-barred.

The applicant sought an assessment of legal expenses following a decision on motions regarding her claim for statutory accident benefits.

The arbitrator determined the appropriate hourly rate for the applicant's counsel, the number of compensable hours, and allowable disbursements.

The arbitrator awarded the applicant $4,913.98 in legal expenses, finding that an hourly rate of $150 was justified given counsel's experience and the good faith nature of the proceeding.

The Applicant was injured in a motor vehicle accident and claimed statutory accident benefits, including income replacement benefits (IRBs) and housekeeping expenses.

The Arbitrator found that the Applicant suffered impairments preventing him from performing pre-accident housekeeping tasks and awarded $4,451 for housekeeping and home maintenance, subject to the $100 weekly maximum.

However, the claim for IRBs was dismissed because the Applicant, who was developing a country property for potential capital gain and rental income, was not considered employed or self-employed within the meaning of the Schedule.

The Arbitrator also awarded interest on a late-paid medical assessment account.

The Arbitrator issued a correction to a Decision on Expenses dated August 24, 2001.

The correction amended the date of an earlier decision referenced in the first paragraph from September 20, 2000, to September 28, 2000.